December 18, 2020

February 2021 Marks the Implementation of New York State’s Child-Parent Security Act

New Law Offers Legal Protection to Those Building Families Through Surrogacy

By Alexis L. Cirel, partner

Earlier this year, the New York State Legislature passed the Child-Parent Security Act (CPSA), a revolutionary and sweeping new law that applies to children conceived using assisted reproductive means.  The statute defines legal parentage with reference to intent and consent to be a parent, rather than the traditional principles of biology, marriage, and/or gestation.  In this regard, it amends New York’s Family Court Act, Domestic Relations Law, Estates Powers and Trusts Law, Public Health Law, General Business Law, Social Services Law, and Insurance Law as they pertain to the legal parentage of children conceived through assisted reproductive means. These important amendments include the repeal of New York’s antiquated ban on compensated gestational surrogacy arrangements under Domestic Relations Law Article 8.

The CPSA, which will go into effect in February 2021, legalizes and regulates contracts to compensate a woman (“Surrogate”) to become pregnant with and gestate a baby to whom she has no genetic connection with the intent that someone else (the “Intended Parent(s)”) will be the legal parent(s) of that child. The statute further provides that if that contract complies with the statute’s detailed requirements and procedures, and if the parties to the agreement meet the eligibility requirements of the statute, then the agreement will be enforced and the Intended Parents may seek and obtain a pre-birth order of parentage securing their legal relationship with the child upon birth. These detailed contract and eligibility requirements are modeled after and build upon established best practices in the world of assisted reproduction, including guidelines promulgated by the American Society for Reproductive Medicine, the Uniform Parentage Act, and the American Bar Association’s Model Act Governing Assisted Reproduction.  The statutory requirements include, without limitation, the following:

  • The Surrogate is at least twenty-one years of age; is a United States citizen or a lawful permanent resident; has not provided the egg used to conceive the resulting child; has completed a medical evaluation with a health care practitioner relating to the anticipated pregnancy; has given informed consent for the surrogacy after being informed of the medical risks.
  • At least one Intended Parent is a United States citizen or a lawful permanent resident and was a resident of New York state for at least six months.
  • The Surrogate (and her spouse, if applicable), and the Intended Parent are represented throughout the contractual process and the duration of the contract by separate, independent legal counsel of their own choosing.
  • The Surrogates’ base compensation and reasonable anticipated additional expenses are placed in escrow with an independent escrow agent.
  • The Surrogate agrees to undergo embryo transfer and attempt to carry and give birth to the child, and she (and her spouse, if applicable), agree to surrender custody of all resulting children to the Intended Parent or Parents immediately upon birth.
  • The Intended Parents agree to accept custody of and assume responsibility for the support of all resulting children immediately upon birth regardless of number, gender, or mental or physical condition and regardless of whether the intended embryos were transferred due to a laboratory error.
  • The Intended Parent agrees to execute a will designating a guardian for all resulting children and authorizing their executor to perform the Intended Parent’s or Parents’ obligations pursuant to the surrogacy agreement.
  • The surrogacy agreement permits the person acting as surrogate to make all health and welfare decisions regarding themselves and their pregnancy and to use a health care practitioner of her choosing.
  • The surrogacy agreement stipulates that the surrogate will obtain a comprehensive health insurance policy and a life insurance policy paid for by the Intended Parents with a term that extends throughout the duration of the expected pregnancy and for twelve months after the birth of the child or termination of the pregnancy.
  • The surrogacy agreement discloses how the Intended Parent or Parents will cover the medical expenses of the Surrogate and the child, including a review and summary of health care insurance coverage and exclusions.
  • The surrogacy agreement provides for the Surrogate’s right to obtain counseling and disability insurance to be paid for by the Intended Parent or Parents.

New York’s new law also sets a new gold standard for the protection of Surrogates by being the first law nation-wide to require that all surrogacy contracts include the “Surrogate’s Bill of Rights,” a summary statement of the Surrogate’s substantive rights that cannot be waived.

Family law practitioners in New York will require a working understanding of the progressive principles underlying the CPSA to properly protect and advise their clients who have children or who plan to have children through third-party reproduction arrangements, including surrogacy. As attorneys in New York State begin to engage with the CPSA they will find that its expansive provisions aptly reflect the complexity of legal parentage in this era of modern science. The law is truly game-changing legislation that will allow countless individuals in New York to build families with confidence and legal certainty.

I was called on by Governor Cuomo to advocate on behalf of the legislation, and I have written about the issue for leading legal publications. On Thursday, January 28, 2021, I will speak at a New York State Bar Association panel entitled: Compensated Gestational Surrogate Has Arrived: The Child Parent Security Act Becomes Effective February 2021.